Elizabeth Dale

The People versus Zephyr Davis: Law and Popular Justice in Late Nineteenth-Century Chicago

Shortly after 3 p.m. on February 27, 1888, Eddie Dwyer, one of the young employees at Greene's Boot Heel Factory in Chicago, began to clear empty sacks out of a closet in the rear of the factory so that coal could be loaded into the room. After pulling out roughly five sacks, Eddie called out that there seemed to be something else in the closet. Investigation established that the something else was the body of another employee, fourteen-year-old Maggie Gaughan, who had been missing all day and apparently had been hacked to death with the hatchet found beneath her body. Suspicion quickly centered on the factory foreman, a seventeen-year-old African American named Zephyr Davis, who was away from the factory on an errand at the time the body was discovered. That suspicion became certainty when Davis did not return from the errand, driven away, as he later admitted, by the crowds he saw gathered outside of Greene's when he returned. ¹
1

      Hostility toward Davis ran high as the hunt for him began. Public interest in the crime continued undiminished when Davis was captured the next day in Forest, Illinois, a town nearly ninety miles outside of Chicago, where he was caught while waiting for the Kansas City train. The case was the center of public attention even after Davis was returned to Chicago and swiftly indicted; interest remained high as he was tried at the end of March, sentenced in the beginning of April, and executed on Saturday, May 12. ²
2

Prelude: Popular Justice and the Haymarket Trial

The legal system treated Davis with dispatch, but as this summary suggests, it did not do so in a vacuum. Nor was his case particularly unique in attracting so much attention. This was a period in Chicago when the workings of law, and particularly the criminal law, were a subject of common, very public, concern. ³
3

      An essay printed a few years after the Davis case, concerning a far more famous trial, helps to explain the significance of that public regard. The article was written by Joseph Gary, the judge who had presided over the trial of the Haymarket anarchists in Chicago in 1886. ⁴ Formally, it was an apology, an effort to answer both those, like Illinois Governor Altgeld, who condemned Gary for playing to mass prejudice and others who praised his conduct of the trial precisely because its outcome was consistent with public opinion. As Gary put it
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[m]ixed with all the approval of my own part in the conviction of the anarchists ... there has been an undertone, like a minor strain in music, that the anarchists deserved their fate; that society has the right to enforce the first law of nature—self preservation; and therefore if I had a little strained the law, or administered it with too great rigor against them, I was to be commended for my courage in so doing. ⁵

      Such a conclusion, Gary went on, rested on a misunderstanding. Law existed to preserve the state. Those who enforced the law were, therefore, agents of the state who were bound to follow law's rules. If they went beyond the limits of law, overlooking its intent or misunderstanding the meaning of a particular doctrine, they erred, even if the end result was the punishment that the public demanded. "The end," Gary carefully noted, "however desirable its attainment, excuses no irregular means in the administration of justice." ⁶ Gary had, so he claimed, recognized his duty and done no more (and no less) than enforce the commands of law in the Haymarket Trial. The rest of his essay was intended to substantiate that assertion. Actually it proved the reverse.
5

      Try as he might, Gary could not support his claim because he was unwilling to disown the idea that justice was derived from the will of the community. Nor did he deny the legitimacy of popular justice in some circumstances. His problems began when he admitted that there were types of wrongdoing that the law on the books did not reach. Wife beating, for example, was offensive but not illegal. Likewise, a salesman might bring contaminated goods into a community and sell them without violating any laws, yet because his act endangered society it was clearly wrong. Gary was forced by the logic of his argument to offer a solution to such problems. But he did not follow up the proposition that the "existing order of society [could] be changed only by the will of the people" with the usual platitude that the people's representatives should pass statutes to fill those gaps. ⁷ Rather, he concluded that in the absence of a specific law, popular, extralegal conduct was permissible. In the case of the beaten wife, members of her family could retaliate by beating her husband. In the case of the impure goods, the community could drive the salesman out of town and destroy his stock. Thus, extralegal conduct was the means by which discrete social groups enforced popular notions of justice.
6

      The danger was that this legitimated some acts of mob violence. Gary struggled to limit the scope of his argument by asserting that extralegal behavior was permitted only where formal law had no power to act. Unfortunately, as he developed his argument further, he could not keep his concept of popular justice contained. When he tried to prove that the Haymarket defendants were legitimately convicted of conspiracy to commit murder, as that crime was defined by common law and the statutes of Illinois, he merely demonstrated that the evidence at the trial vaguely established that the defendants' ideas threatened society. The conclusion of his essay mirrored the outcome of trial. The vague threat became cause enough to validate the convictions, regardless of the actual command of any law. In the process of reaching his conclusion, Gary reduced law to an instrument of popular justice, a far cry from his initial claim that popular justice was a carefully limited option that merely applied in the absence of law. Ultimately, in Gary's unwitting formulation, law had no existence apart from popular justice, since law was nothing more than common sense. ⁸ Thus, as hard as he tried to deny that the Haymarket trial had been coopted by public opinion, Gary's essay described a world where formal law and popular justice were unavoidably entangled.
7

      Historians give little credence to Gary's efforts to justify the Haymarket verdict. But even those who condemn his interpretation share the view of law he tried to maintain. They treat the verdict as an anomaly, a clear breakdown in the rule of law produced by popular prejudice and a manipulated fear of violent unrest. ⁹ But the Davis case suggests that in late nineteenth-century Chicago popular justice impinged on law even in cases that were much less famous and resulted in verdicts that were far less controversial. The value of the Davis case is that it reveals the pervasive influence of popular justice. In addition, it shows that when formal law cannot be separated from popular justice, there is no rule of law. The Davis case demands reflection on both popular justice and law. It compells us to consider the various manifestations of each, when and how we decide that one of those manifestations is dangerous, and what that determination means. In the process, it forces us to ask how we judge a case not grounded firmly in the rule of law. Ultimately, the case raises the possibility that we, like Joseph Gary, do not always think through the implications of those two concepts. ¹⁰
8

Law and Zephyr Davis

The easiest way to begin this consideration is to divide the history of the Davis case into several, slightly overlapping, parts. The first spans the two days from the discovery of Maggie's body to the capture and arrest of Zephyr. The second covers the month-and-a-half-long pretrial period; the third, the trial itself; and the fourth, the period from verdict to execution. Throughout the narrative, I use contemporary accounts published in Chicago's several newspapers. Analysis of the attitudes underlying these reports reveals much about popular attitudes toward the crime and law itself.
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Stage One: Discovery

The first period was dominated by that particularly savage expression of popular justice, the lynch mob. Demands for summary punishment began almost the moment that Maggie Gaughan's body was discovered, and they were repeated over and over in the first days after the crime. The very night of Maggie's death, her friends and neighbors called for a mob to capture Davis (already viewed as the murderer) and burn him to death. The next day the topic of lynching dominated conversation at Maggie's wake. ¹¹ As one report put it, "feeling in the neighborhood [where she lived] is stirred to the highest pitch, and the police fear that there might arise an organization to summarily deal with the negro Davis." Ominously, that same account noted that "the police, individually, proclaimed that they felt but little like offering any determined opposition to the wrath of the people." ¹²
10

      This was not just talk. A crowd went searching for Davis the night of the murder and clearly would have killed him if he had been found. So, too, an angry mob gathered at Forest and circled the place Davis was held after his capture, nearly preventing him from being put onto a train to return to Chicago. Nor did his arrest relax the threat. When the train bearing Zephyr arrived in Chicago, the police took him off at the Archer station, roughly a mile from the main police headquarters, rather than at Polk street, which was a few blocks closer, in an effort to avoid meeting a mob. That caution was well placed; there were people at the Polk street station waiting for Davis. Even once he was safely in police custody in Chicago, Davis had to be taken to court in the fastest police wagons, again in an effort to keep him out of the hands of the mobs that gathered along the way. ¹³
11

      While no lynching actually occurred, the threats of the mob were a reminder that popular justice was a possibility, and the scene at Forest demonstrated how real that threat was. In addition, the daily papers publicized the calls for violence well beyond the groups in which they arose. By doing so, they turned Maggie's murder into something more than an injury to be avenged by her friends and family. Her death quickly became a citywide (even, as the reaction in Forest suggested, statewide) outrage, much the way that the bombing at Haymarket Square was swiftly escalated into an attack on Chicago at large.
12

      By encouraging the city as a whole to react to the murder, the papers legitimated large-scale mob violence. Their reactions also reflected the uncertain temper of the times, when popular violence was hardly confined to the unreconstructed South or the mining towns of the West. ¹⁴ Less than twenty years before, during the Chicago Fire of 1871, Chicago newspapers noted with horror that gangs roamed the streets looting and starting more fires. The same papers reported with approval that mobs of public-spirited citizens gathered to restore order, often capturing and hanging suspected looters or incendiaries on the spot. While these accounts were apparently apocryphal, they were included in the histories of the Fire that were reprinted in the following years. There, as in the original accounts, the mob's role was unequivocally good because its purpose was the protection of society. So, too, in covering the labor unrest of the early 1880s, some Chicago papers reported with satisfaction efforts to lynch people believed to be anarchists, including, in one instance, Albert Parsons, who was later executed after being convicted in the Haymarket trial. There were repeated calls for a lynching in the aftermath of the Haymarket bombing. Nor did attempted lynchings, or other violent extralegal reactions, follow only infamous events. In the two-year period between Haymarket and the Davis case, the Chicago papers reported on many lynchings, near lynchings, and other extralegal mob actions in Chicago and in other parts of the country. ¹⁵
13

      While all the papers talked of extralegal justice, they did not do so in a single voice. Their reactions revealed the varied rationales that underlay an apparent visceral response. In part, those differences were suggested by distinctions in tone. Some early press accounts of the Davis case added occasional warnings of the dangers of lynching—recounting, for example, the narrow escape of one young black man who was mistaken for Davis and nearly captured by a mob hell-bent on hanging him on the spot. But other stories reported lynching demands with far less caution. ¹⁶
14

      The papers' different views rested on more complicated grounds than style, however. The independent and reformist Chicago Daily News frequently reported on incidents of mob action. Although it formally took the position that mob action, or extralegal conduct, was wrong, it reported stories of mob action with favor on more than a few occasions. ¹⁷ In relating the murders and rapes of children or elderly women, it typically failed to condemn any lynchings that followed. ¹⁸ Sympathy for the victim justified other lynchings as well. In one account, the Daily News approvingly noted that it was quite likely several people in Kentucky would be lynched. An opponent of drinking had been tricked into drinking himself into a stupor and then had died as his companions laughed at his condition. The article ended with the statement that "[a] strong rope would help his slayers to realize the fiendishness of their treatment of him." ¹⁹ When it was not overtly justifying lynching by outrage over the crime or sympathy for the original victim, the Daily News sometimes implied approval, based on public support. One story briefly noted that "[t]wo men at Fort Snelling, Dakota Territory, became enraged at the behavior of a drunken man and effectually suppressed him by chasing him from town and shooting him to death. This action was certainly effective, and, as the shooters were released on their own recognizance, it seems to meet with the approval of the great northwest." ²⁰
15

      The Daily News also approved of less drastic expressions of popular justice. ²¹ In one story, sounding much like Gary, the paper praised vigilantes in West Virginia who whipped a man for beating his wife and children. The paper admitted that the vigilantes' "act, of course, is without sanction of the law, but it would be difficult to find a jury willing to convict men engaged in the administration of justice in this form." ²² Nor was its approval limited to mob actions undertaken away from Chicago. When I. H. Cady attacked his wife outside the Chicago courtroom where she was appearing to prosecute him for a divorce, the paper happily recounted that he was chased down the street by a mob and escaped harm only because he ran into the arms of a police officer. ²³ The Daily News also reported with satisfaction that a man who had beaten a five-year-old boy was captured and nearly killed by people from the neighborhood before the police arrived and took him into custody. ²⁴ In both cases, the Daily News, usually quick to deplore conduct it did not approve of, said nothing negative about the efforts to execute rough justice on the streets of Chicago.
16

      The Daily News offered its most complicated rationale for popular justice in 1886. That year, a man in Irving Park (a Chicago suburb) was accused of taking indecent liberties with small girls. According to the paper, several "well to do citizens" gathered together to discuss the case. Some wanted the suspect tarred and feathered, but the majority decided that the man should be driven out of town. A group of fifty "of the most substantial men in the town" went to his house and convinced him to leave. ²⁵ The account went on to quote the village postmaster: "'The citizens thought it was best to take the law into [their] own hands. If [he] had been prosecuted criminally there would have been many things in the way of securing a conviction. Only the statement of the little girl could be used as evidence against him.'" ²⁶ Gary's position had been that extralegal acts were proper only as reactions to conduct that the law did not proscribe. The Daily News accepted extralegal behavior even where the legal system had the capacity to act. Its apparent rationale was that such a response was legitimate when legal rules made it likely that a defendant would not be convicted.
17

      While these examples suggest that the Daily News tolerated a wide range of extralegal behavior, there were limits. The paper rejected mob action that it deemed unjust. For example, the paper denounced a New Orleans lynch mob that pursued an African-American man who had killed a white man. The murdered white man had been part of a group that had severely beaten the African American. Notwithstanding the fact that days apparently separated the beating and the murder, the paper noted that the killing seemed justified as self-defense. Under those circumstances, the first murder was permissible, but the subsequent, attempted lynching apparently was not.
18

       Although the Daily News did not blindly endorse racial violence, race could and did confuse its reaction to popular justice. In 1885, it ran a story approving South Carolina regulators who whipped or otherwise tried to drive out of town couples involved in interracial marriages. The paper treated this as a legitimate response to a morals problem but never explained what the underlying moral offense was. This fit a general pattern. Although the paper generally disapproved of lynchings that seemed motivated solely by the race of the victim, it often accepted without question the assertion that a black man was guilty of a murder or rape and excused any subsequent lynching. ²⁷
19

      The Daily News was motivated by its own idiosyncratic role as an advocate of popular reform (with an emphasis on popular), and no Chicago paper went as far in endorsing the legitimacy of extralegal conduct. ²⁸ But other papers publicized, and seemingly supported, some mob action, suggesting additional justifications in the process. For example, the Democratic (and, as its circulation declined, aggressively sensational) Chicago Times suggested a racist justification for lynching Davis. ²⁹ Its story on the case, printed the day after the murder, ended with the statement that if Davis "had appeared near Maggie Gaughan's home last night he would have met with treatment such as they give down south to criminals of his class." ³⁰ But race, though important, was not the only factor the Times considered. In another account printed the next day, the Times told its readers that Davis was nearly lynched in Forest and would have been had he stayed there any longer. In that same article, describing Davis's return to Chicago, the paper reported that "feeling in the neighborhood [where Maggie lived] is stirred to the highest pitch, and the police fear that there might arise an organization to summarily deal with the negro Davis." The wording suggested that lynching was a proper expression of community outrage, but that was not the only excuse for it. The Times informed its readers that the police were unwilling to offer much defense against the mob that seemed bent on catching Davis. It implied that an extralegal response was justified whenever law was willing to step aside. ³¹
20

      Although it later merged with the Times, in 1888 the liberal Chicago Herald did not share that paper's political, economic, or racial motivations. Even so, it accepted the occasional lynching, and its treatment of mob violence resembled the Times's (and Gary's) sense that lynching might be a legitimate community response. The very day of Davis's capture, the Herald ran a story recounting, without comment, a lynching in Cairo, Illinois. ³² The next month, it reported the near lynching of a police officer, believed to have killed a popular saloonkeeper in Chicago's Humbolt Park neighborhood. ³³ The incident was a case of mistaken identification, and the paper treated it as a harrowing near miss for an innocent man. But the story interpreted the mob's desire for "desperate revenge" as in part justified by the victim's popularity. The Herald seemingly endorsed lynching in the Davis case as well. Commenting on Davis's capture, the paper noted the unceasing attempts to lynch him at Forest and reported with sympathy similar sentiments among the residents of Maggie's neighborhood. ³⁴ That response, consistent with the paper's reaction to the near lynching in Humbolt Park, came the closest to the position Gary later advocated—that extralegal acts were legitimate when limited to the social unit most directly affected. But by not condemning the more distant Forest mob, the Herald opened the door to broader involvement.
21

      Even the Republican, pro-business Chicago Tribune, a pioneer in keeping lynching statistics from 1882 on, did not uniformly denounce mob law or extralegal violence. It reported stories of lynchings, even of African Americans in the South, in some cases without comment or condemnation. ³⁵ In July 1887, it reported the near murder of an elderly white couple from Waukegan, attacked in their home by an African-American man from the area who was angered by their attempt to drive him out of the community. When the African American was captured, the Tribune reported that there was "great indignation but the general sentiment is favorable to law rather than lynching." ³⁶ Like the Herald, the Tribune treated lynching as a permissible extralegal response by members of the affected community. But the Tribune did sometimes go further in excusing extralegal action where the law seemed too slow or otherwise inadequate. Consistent with its pro-business bias, work stoppages and strikes were bad and could be met with summary punishment by employers or outright brutality on the part of the police. So, too, when citizens banded together to protest other activities, especially governmental failures, and did so in an orderly fashion, the Tribune endorsed their extralegal conduct. ³⁷
22

      Of all the daily papers, the Chicago Inter-Ocean took the dimmest view of activities that seemed to thwart the formal workings of the law. Even when that paper reported the conduct of a mob without condemnation, a closer look reveals how limited its support for extralegal behavior was. For example, in a report of a near lynching in Minnesota, the Inter-Ocean offered no criticism of a mob that seized a man accused of abusing his wife. But the story went on to make it clear that the mob stopped short of lynching the man. It seized him from jail and threatened him with a lynching until he begged for mercy. Then, after warning him that it would watch his future conduct, the mob set him free. Such restrained reaction was consistent with what the Inter-Ocean thought was proper. It had nothing against community outrage but preferred that it be expressed rationally. It deplored actual acts of violence. Where reason could not dissuade, the Inter-Ocean urged that the legal system be given a chance to take the appropriate action. ³⁸ Among Chicago papers, the Inter-Ocean was the most forceful in its support of the law at the expense of popular justice. But its treatment of the Minnesota incident shows that even the Inter-Ocean accepted that public opinion had a vital, extralegal role in certain circumstances.
23

      This theory that private citizens had to retain some role in defining justice was a least common denominator uniting different visions of extralegal activity. Philosophical niceties aside, it was easiest to justify mob violence in cases involving attacks on women or sex crimes. ³⁹ The suspicion that Zephyr Davis had sexually assaulted Maggie Gaughan justified most early calls for extralegal justice, and it was that aspect of the crime that the papers most played up in their earliest stories. In its first description of the discovery of her body, the Chicago Tribune made the point discretely by reporting that the victim's dress was disheveled. Other papers were far more direct. The Chicago Herald's headline the day after the murder trumpeted that Maggie Gaughan had "Died for Honor's Sake." As the Chicago Times told the tale, there was "only one story to be gathered from the wounds and the condition of the body. The girl had her little cloak and hat and her rubbers still on. She was met at the door by the negro and dragged into the closet. He had forced her to the floor, and she had screamed and fought with the best of her childish ability. Then he had picked up a hatchet, and holding her by the throat with his strong fingers he had rained down his murderous blows on her poor face." ⁴⁰
24

      By presenting the case in these terms, the reports not only served to justify, and inflame, public reaction, they also helped define the popular understanding of the crime. Significantly, nothing substantiated this effort to make Davis into a rapist as well as a murderer. The coroner found no evidence of rape or attempted rape, and the indictment only charged him with murder. But the official characterization of his crime never really mattered, any more than did the official characterization of the Haymarket bombing. From the first days of the case, the alleged crime had been given a particular, public meaning that continued throughout the trial, to the point that the prosecutor, in his statement to the jury, asserted that Maggie Gaughan had died defending her honor. ⁴¹
25

      Although most of the early references to extralegal action tied justice to the need to avenge Maggie's honor, sometimes the failure of the legal system was offered as a popular justification as well. Illustrations on the front page of the Chicago Tribune that accompanied the story of Davis's arrest at Forest mocked the number of police officers needed to search for him. The Chicago Herald made the same point when it sneered that "it took a county officer" to capture Davis. In each instance, the mob, standing by ready and willing to string Davis up, rebuked the slower, ineffective, processes of law. While these accounts focused on the near failure of the legal system to bring Zephyr to justice, others warned that the system still might not do so. For instance, the Chicago Times used the account of Davis's arrest in Forest to raise the fear that a legal loophole might prevent him from getting the hanging he deserved. The Chicago Tribune took a similar approach when it derided one of Davis's brothers for asking to see a search warrant while the police searched their mother's house. Even the Inter-Ocean, generally so resolute in its commitment to law and the legal system, made light of Davis for presuming to ask for an arrest warrant when he was captured, suggesting that such legalistic requirements were ploys to evade justice. ⁴²
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Stage Two: Pretrial Motions

People (and papers) in late nineteenth-century Chicago shared Gary's idea that there were two justifications for extralegal conduct. First, a community had a right to exact justice in response to harm. Second, law might jeopardize justice, either through the ineptitude of its agents or by the legalisms it encouraged. ⁴³ Nor were these views unique to a particular segment of Chicago. The Haymarket defendants and their allies frequently criticized the state for being selective in its respect for law, and were, in turn, attacked for demanding the protections of some laws, even as they denied the authority of others. Edgar Lee Masters, the poet and sometime lawyer who practiced with Clarence Darrow in Chicago in the late nineteenth century, noted that others had a similar attitude: "As in many other particulars, the leading men disobeyed [one] law, while calling loudly upon the police to enforce [another] law...." In general, if a law was consistent with what a group (or an individual) thought was just, the call was for strict enforcement. When a law was inconsistent with that sense, then it was a corruption of justice and should be opposed. ⁴⁴
27

      The second, pretrial period of the case offered a more pacific version of popular justice. At that stage, the mobs threatening extralegal violence gave way to groups that discussed and debated legal issues raised by the case. This process began when the coroner's jury, which met the very night of Zephyr Davis's arrest, not only determined that Maggie Gaughan had been murdered but also denounced Greene's factory for hiring an interracial workforce, a situation, it suggested, that had led to her death. Shortly thereafter, members of Chicago's African-American community met to protest that verdict as an attack on racial equality. They issued a sharp reproof and began an ultimately unsuccessful campaign to unseat the coroner in the next election. At roughly the same time, a socialist labor organization, the Trade and Labor Assembly of Chicago, met and condemned Greene's for hiring underage workers, in violation of a city ordinance prohibiting child labor. The Assembly gathered several times to discuss the issue, threatening at one point to bring suit against Greene's if the City did not promptly enforce its own ordinances. Ultimately, the City did bring suit, and Greene's was fined the maximum amount—$200. ⁴⁵
28

      As this demonstrates, protest groups in late nineteenth-century Chicago came in a variety of guises. Some, like the coroner's jury, expressed popular views in an institutional setting; grand jurors were prone to use jury service as a platform to state their particular concerns. Other groups, although they lacked institutional status, met regularly and commented on a variety of issues. As the example of the Trade and Labor Assembly suggests, members of citizen's committees, unions, political organizations, and elite clubs met consistently and regularly debated civic issues. Other groups, often but not exclusively arising within neighborhood, ethnic, or racial communities, organized in reaction to particular problems, staying together only long enough to get their points across. These different protests were part of a larger civic culture of discussion and debate over law. There were debates between rival workers groups over laws regulating labor, meetings called to press various views on saloon-closing laws, public speeches on the meaning of civil rights acts. Ministers gave sermons on the meaning and failure of law, bar associations held symposia in law's defense. Citizens' groups of all political persuasions called for closer regard to the rule of law, stricter enforcement of laws on the books, creation of laws to provide greater protections, and an end of laws that seemed unfair. Neighborhood groups protested failure to enforce laws, as when the people living on Butterfield and Dearborn streets forced the city to raid houses of prostitution in their neighborhood. ⁴⁶ Some of these groups represented elite interests, others non-elite, even marginalized, people. Some had semiofficial status, others were suppressed. Yet for all their differences, each attempted to articulate its views for the entire city. They were, regardless of their particular motivations for organizing or their ideological antecedents, intent on having their opinions influence the direction of the government and the nature of the laws.
29

      These groups were similar to the mobs in their concern with law's inadequate relationship to justice. Their generally nonviolent approach was very different. But, to the extent that they exceeded their limited authority and advanced their own ideas of justice, they were extralegal forces in a different sense of the term. Nor were these groups unwilling to act as well as talk. The differences between a citizen's arrest by the Citizens' Committee and the rough justice administered by a neighborhood mob were often no more than a matter of degree and class. ⁴⁷
30

      As with the mobs, these groups were able to influence others because their activities were reported by the local papers. In addition, by reporting the debates and meetings, the press helped foster the sense of public interest that encouraged further discussion. At the same time, Chicago papers saw themselves as participants in the various civic debates, not just conduits. They challenged the actions of local government officials, denouncing them or mocking them as the circumstances seemed to demand. So too, they carried on debates with each other, reprinting editorials they approved from other papers, writing editorials that denounced other papers for taking positions they considered stupid, and printing the occasional letter to the editor attacking another paper. Newspapers also debated citizens' groups, reporting (and attacking) the positions taken in a wide variety of meetings. ⁴⁸
31

      Reports of the positions taken on the Davis trial also made it clear that not every group had an equal voice. By recounting the various disputes over conditions at Greene's factory, the Chicago Tribune brought them to the attention of a larger audience. But it also helped to mitigate that effect. It dismissed the jury's criticism of racial mixing in the workplace, mocked the African-American community's protest, and roundly supported the calls of the Trade and Labor Assembly for enforcement of the city ordinance. ⁴⁹ In some respects, those reactions increased the possibility of debate. By dismissing the comments of the coroner's jury, the Tribune suggested that overtly racist appeals had no place in public discussion, which, it implied, should be inclusive. But its condescending treatment of the African-American community's protest demonstrated how race continued to hover uneasily in the background of the case.
32

      There is little question that Maggie Gaughan's murder increased racial tension and that this tension inhibited discussion. But the situation was more complicated. During this period in Chicago, interracial relationships (including some of a sexual nature) were grudgingly tolerated, even if they were not enthusiastically accepted. So, too, integration was not unheard of, even though its extent was, at times, contested. ⁵⁰ Integration into the Chicago community was the goal of most African-American leaders, and Chicago's African-American press was committed to encouraging and perpetuating integration. But this very commitment undercut racial equality, since it meant that the African-American press and community were very concerned about the image of Chicago's African Americans. Two African-American newspapers, the Western Appeal and the Chicago Conservator, often disparaged those African Americans who seemed to be lawless and lower class and tried to distance them from other, more respectable African Americans. Zephyr Davis's crime was, inevitably, lawless, and hence a threat to integration. And because it involved the murder of a white woman by a black man, it could all too easily confirm the claims of black lust that were beginning to be heard in the South. It was too risky to support Davis, so the Western Appeal did little to cover the case. ⁵¹
33

      Nor was that paper unique in trying to minimize the racial aspect of the case. During the pretrial period, Davis was briefly represented by two African-American lawyers, both of whom handled civil rights cases and often spoke on civil rights matters. But as quickly as they appeared on Zephyr's behalf, they were replaced, apparently at the request of his mother, who hired two white attorneys to represent her son. Although no clear explanation was offered, it seems plausible that Sophia Davis feared that with African-American attorneys, her son's trial would turn into a "race case." ⁵²
34

       Despite such efforts, as the pretrial period extended into April, coverage of the case by the daily press became increasingly racist. In particular, descriptions of Zephyr Davis shifted markedly. Accounts written immediately after the murder described him as bright and alert looking, with some suggestion that he was mulatto and therefore particularly intelligent. Such accounts were condescending but not derogatory. However, articles written about the chase and capture of Davis described him in much less complimentary terms. By the time of his arraignment, the Daily News, which had previously emphasized his light complexion and intelligent appearance, described Davis as "[h]ulking, black, bestial, thick lipped, squat nosed," with "feet of enormous size" and the "gait peculiar to a plantation darky." Other papers followed suit. Even the Inter-Ocean, which generally resisted the urge to indulge in racist stereotyping, discussed Zephyr in increasingly racial terms. For example, it noted in an article on a pretrial hearing that Davis was "no Adonis even of the Ethiopian kind." Later articles suggest that the Inter-Ocean avoided emphasis on Davis's race in order to downplay accusations that he was railroaded to justice because he was African American. But regardless of its motivations, its discussion of Davis complemented the more racist treatments of other papers and so reinforced their more pernicious aims. ⁵³
35

Popular justice and formal law. Discussion of the case in the days before the trial revealed two views of law's relationship to popular justice. On the one hand, popular reaction reflected the desire that law be strictly followed and enforced, so that the legal system would protect people. At the same time, discussions revealed an equally strong, but seemingly groundless, fear that legal loopholes would stop Davis from being tried and convicted. These very different responses show the extent of popular hostility to formal law. At the same time, those public protests and meetings demonstrated a high level of popular debate over, and participation in, civic life and law in Chicago. In that respect, they revealed a considerable degree of popular political power.
36

      All this may hardly seem to be a revelation. Other studies of nineteenth-century law have placed trials within a context of larger, public, debates, demonstrating how those debates gave meaning to legal concepts, and, in turn, how those new legal concepts altered social and cultural meanings. ⁵⁴ But their emphasis has been on the indirect way that public opinion informed legal discourse. That was not precisely the situation in the Davis case or, more generally, in late nineteenth-century Chicago. There, the public was not simply a participant in legal discourse. On the contrary, its role in the Davis case, whether manifested by mobs or less violent groups, was to call law into question and to make sure law responded to popular ideas of justice. Both the mobs and the protest groups were the means by which private people (as opposed to public officials) challenged and influenced the authority of the law, and through law, the state. The debate was about more than the meaning of concepts. Ultimately, it was about political power. ⁵⁵
37

      The first two stages of the Davis case suggested that Chicago, like many other late nineteenth-century American cities, had an active public sphere. ⁵⁶ This permitted private people to discuss, debate, and challenge the decisions of the government in a variety of public settings, including clubs, newspapers, and public squares. The public sphere—or as some would have it, spheres—was never simply a collection of discussions outside the formal systems of law or government. Rather, it was an alternative to the power of the state and a way by which the state was checked or redirected by the citizens. ⁵⁷ They had a shared concern with justice, and its relationship to formal law, although that concern might be expressed in different ways, and the underlying view of justice might often differ as well because it was so easily tied to the communities' senses of their particular needs. The Davis case reveals that particularity, since lurking beneath public reaction was the divisive threat of racism, which increasingly distorted the treatment of Davis in the mainstream press, and simultaneously restrained the African-American community.
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Stage Three: The People versus Zephyr Davis

The first two stages of the Davis case demonstrated how much the public wanted to influence law and that it could do so in some respects. But the full extent of popular power over law was not revealed until the trial actually began. Although this was a public event, and drew large crowds every day, the audience had little direct impact. Instead, at least at the beginning, the press was once again the dominant actor, publicizing what it characterized as defense attempts to undermine the fairness of the trial. It quickly became clear that fair did not mean painstaking, scientifically neutral, or objective. On the contrary, fair meant conducted in a manner consistent with the view that Davis was guilty. ⁵⁸
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      The notion that the trial's purpose was to confirm the collective sense of Davis's guilt was not confined to the newspapers. A similar attitude surfaced during the examination of prospective jurors, particularly during the defense portion of the voir dire, when Davis's attorneys tried to determine what understanding prospective jurors had of the burden of proof. Many would-be jurors stumbled in their responses. The second man questioned struggled with the presumption of innocence. After admitting that he had come into the courtroom with a preconceived notion of Davis's guilt, he was asked "If the opinions [you] hold" about Davis's guilt "would require evidence to remove?" He admitted, several times, that "such evidence would have to be forthcoming." The defense attorneys argued that this made it clear that he put the burden on the defendant to prove he was not guilty and demanded that he be excused for cause. But Judge Hawes refused. "Suppose," he recommended, "you question again, and add 'if taken as a juror.'" When asked that question, the man affirmed that if called as a juror he would be willing to put aside his opinion. Based on that, the judge refused to dismiss him. The rest of the first day of jury selection passed much the same way. The trial judge continued to play to the public assumption of guilt. He was quick to cut short defense questions about the burden of proof and to help prospective jurors avoid answering questions. ⁵⁹
40

      The judge's tendency to support the state at the expense of the defense became more marked as jury selection continued into the second day. Shortly after the trial resumed on Thursday, Judge Hawes interrupted the defense attorney in the middle of his examination of a juror. At issue, once again, was the question of whether the prospective juror understood the burden of proof in the criminal case. When the defense attorney argued that the juror's answers indicated that he was not competent to serve since he would place the burden on the defendant, Hawes disagreed. "I say he is," he said. "He has to bring a verdict according to the law, and the law says he must give the prisoner the benefit of any doubt." When the defense attorney noted that the juror said that he would not give the defendant the benefit of the doubt, the judge responded: "I can't help that, he has also said that he would try the case according to the law, and I think he will." He then continued, "And while I'm talking I want to say you are consuming too much time. This case is no more important than many others, and I shall limit you in your questions if you don't cut them off. I shall not permit you to take up a week getting a jury." When a defense attorney objected that he had to have the time to ask the questions he had to ask, Judge Hawes once again disagreed. In response to the argument that there was no precedent for cutting short voir dire, he said that he would create one. ⁶⁰ No paper noted, or apparently cared, that this attitude, and Hawes's efforts to rehabilitate prospective jurors, was identical to Gary's conduct during the Haymarket trial. Apparently, this was business as usual in the Chicago courts. ⁶¹
41

      But their indifference to this connection did not mean that the papers were active defenders of the judge. Reports of the trial grew increasingly exasperated with the delays in getting it underway. The Inter-Ocean was most put out, referring to the "almost insufferable tedium, brought about by the wearisome policy of the defense." Despite its focus on the defense, the real concern seemed to be the manipulation of the process. Reporting on the last morning of voir dire, the Inter-Ocean characterized it as a sham on all fronts. "The challenges for cause were innumerable, the Court's interferences and adjustments were as plentiful, and then the ground of examination would be gone over again, until finally, despairing of entangling the candidate for jurorship, the right to peremptory challenge would be exercised, and fresh men would be sworn in." ⁶² Consistent with its respect for law, the Inter-Ocean's objection seemed to be that the voir dire made a mockery of the legal system.
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      Other papers had different views. Several treated jury selection as more amusing than tedious. Reporting on the first day of the trial, the Tribune recounted with glee the way a "farmer" endlessly countered every question he was asked by defense attorneys. It was hard to say from the story whether the paper had more contempt for the rustic or the lawyer, but their exchange on the preponderance of the evidence enlivened what the paper apparently considered an otherwise dismal day. The Tribune also tried to derive some drama from one potential juror's claim that he knew Zephyr Davis. The man explained that three years previously Davis had sold newspapers at the corner of Wabash and Eighteenth Streets, and that he had bought papers from him over the course of three or four months. The Tribune continued, in a slightly mocking vein, to note that although the juror was advised that three years before Zephyr was living in Kansas City, he was accepted by the judge when he said he could give Davis a fair trial. While those incidents unquestionably were amusing or bizarre, the Tribune's frolicsome tone did little to engender respect for the process of selecting a jury. On the contrary, these articles and others like them suggested that the courtroom procedure was a monumental waste of time. ⁶³
43

Once the actual testimony finally began, accounts of the trial continued to dwell on the defendant's efforts to delay the trial by seeking to call witnesses who were out of town, described efforts to distort justice by raising an insanity defense on Davis' behalf, and generally attacked the defense. Even that staunch supporter of the legal system, the Inter-Ocean, commented skeptically on the defense witnesses. ⁶⁴
44

      Defense efforts to prove that Davis was insane provoked the strongest objections. That defense, based on testimony by friends and members of his family that he had seizures, was consistent with contemporary medical opinion, which held, as a doctor put it at the trial, that epilepsy "predisposed one to a homicidal mania." ⁶⁵ But that diagnosis had no effect on popular reaction. Over and over the papers denounced the "insanity dodge," without considering its possibility. Descriptions of Davis shifted in keeping with this focus. Reports began, once again, to emphasize his intelligence, asserting, for example, that he was a bright young man who was trying to look insane. The Chicago Daily News went so far as to characterize evidence for insanity offered by the defense as "immaterial." ⁶⁶
45

      These responses to the insanity defense were not unique to the Davis case. Popular reaction to this strategy is exemplifed by the response to a more celebrated murderer, Charles Guiteau, who attempted to raise an insanity defense when he was tried for the murder of President Garfield in 1881. ⁶⁷ The defense was attacked as an egregious example of legalism that conflicted with justice. In the Davis case the judge encouraged a similar reaction. Several witnesses for the defense described the defendant's fits (including the one he had the night before the incident). Then a doctor employed by Cook County who had examined Davis in prison was called and asked whether the symptoms as described might be insanity. He refused to admit that Davis was insane, but he conceded that if everything was as the witnesses testified, Davis probably suffered from insanity. ⁶⁸ That was the extent of the medical defense offered on Davis's behalf. Limited though it was, the judge challenged it, commenting that so far as he was concerned Davis was sane and that from "his experience at the bench and bar, he had lost confidence in medical expert testimony." ⁶⁹
46

      This judicial hostility to medical testimony paralleled popular hostility to lawyers, judges, and other "experts." Its purpose, apparently, was to offer the jury an out—a way to follow the law and still convict Davis. In that sense, it was the judge's final bow to the popular sense of Davis's guilt, but it did not, in the end, influence the verdict. After the closing arguments, the jury retired for less than an hour, voting that Davis should be convicted and hanged. Commenting on the verdict after the case, the foreman of the jury noted that, notwithstanding the judge's remarks, the jury found that the evidence offered in support of Davis's insanity was both clear and convincing. Even so, he said, the jury concluded it had to vote for his execution, because "it would have been a disgrace to Cook County to let so foul a deed go unpunished." ⁷⁰ The judge's rejection of expert testimony was an attempt to let common sense wisdom work within the confines of formal law. But the jury's actual decision was an assertion that it could ignore any legal standard that was inconsistent with its sense of justice. ⁷¹
47

      As the Davis case makes clear, formal law in late nineteenth-century Chicago was subject to the control of popular justice from a variety of angles. Mobs, organizations, informal gatherings, and the daily press kept watch over law, criticizing and demanding that it pay attention to the public sense of what justice required. The believable threat of extralegal violence, combined with less violent group protests, acted as one check on the formal law. At the same time, public debate over, and statements about, justice offered another measure against which the legal system's actions were judged. Schooled by these debates, and given latitude by judges (as well as approbation by the daily press), jurors felt free to advance their visions of justice, demanding, where possible, that the law be strictly enforced and insisting on their right to reject the law if it was inconsistent with what they believed justice required. ⁷² Taken in combination, this meant law in late nineteenth-century Chicago indeed was common sense.
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Stage Four: Final Judgments

From murder to verdict, the history of the Davis case is a study of how, and why, popular justice could dominate formal law. Popular reaction during the last stage of the Davis case—from verdict through execution—complicates that story. Less than a week after Davis was sentenced to die, the Chicago Union League Club had a meeting to discuss "the Defects of the Criminal Law." At the meeting, lawyers and judges unanimously agreed that there were few problems with the system and that "the fault [lay] rather in the administration of the laws than in the laws themselves." ⁷³ Reporting on the meeting in an editorial, the Chicago Tribune begged to differ. There had been, the paper conceded, some necessary and recent reforms in the criminal justice system, mostly as a result of "persistent agitation in the public press," but those reforms were too few and too far between to do the system any real good. There can be, the Tribune pronounced
49

no radical change for the better until the criminal law is considerably modified—until the various statutory amendments and additions made by the representatives of the lawyers' trade union in the Legislature to improve the chances of criminals, to increase the number of the law's delays, the criminal's loopholes of escape, and the opportunities for lawyers to make fees are removed from the statute books, and until the sympathy between the bench and bar in support of these features of the trades union combination is less strongly manifested than at present. ⁷⁴

      The problem with law, in effect, was that the entire legal system threatened to undermine justice. Having made that point, the Tribune pointed to Davis's trial as an example of how the legal system should function. Davis had been tried and convicted promptly, his sentence apparently would be carried out with equal dispatch. "All this is proper and as it ought to be." But this was not because the system worked. Rather, it was because Davis was too poor to hire good lawyers to delay his sentencing as the rich could do. The Tribune made similar points at other times, and in other contexts, noting, for example that Matthias Busch, "a wife murderer," had been found insane and sentenced to life imprisonment, rather than be executed, because of his good lawyers. In both instances, the Tribune's expressed concern was with manipulation of the law, a concern other papers had echoed during the course of the Davis case. Delays and manipulation were ways in which law could interfere with popular justice. But complaints about these ploys were not the real issue. The underlying demand was that the legal system should remain attuned to the desires of the people. ⁷⁵
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      Thus, the Tribune's initial reaction to the trial treated it as a salutary example of justice triumphing over law. But it drew a different moral from Zephyr's execution. The most noticeable aspect of the Tribune's account of the hanging was the new image it offered of Davis. Gone was the brutish, barely human, black. ⁷⁶ In his place was a well-dressed, well-spoken, literate young man, who wrote to the governor on his own behalf, seeking to have his sentence commuted, and who was praised by that governor, even as he denied the petition, for his skill and intelligence in making that appeal. So, too, the godless animal, who sneered at reporters as they gathered around his cell, was replaced by a Christian who asked to be forgiven, urged others to avoid his course, and who sang a hymn just before the hangman's noose was placed around his neck. ⁷⁷ As extraordinary as that shift was, more remarkable was the Tribune's description of the execution. This explicitly compared Zephyr's conduct to the behavior of those who watched his execution. The crowd, which the Tribune condemned as full of political hacks and hangers-on, failed to measure up to the solemnity of the moment, their crude jests and vulgar mannerisms threw Davis's restraint into sharp relief. ⁷⁸ An account in the Daily News agreed that nothing in Davis's life became him like the leaving of it, and nothing exposed the coarseness of the people as the failure of the crowd to equal his dignity in the face of justice. ⁷⁹ Suddenly, the popular part of popular justice was no longer so attractive.
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      In the space of less than a month, the Tribune used the Davis case to support arguments for, and against, popular justice. Yet neither argument was particularly novel, and both could be reconciled. The paper's argument for popular justice simply echoed the attacks on legalism that had previously surfaced in the case. So, too, its argument against popular justice reflected the assumptions inherent in its discussions of mobs. So long as mobs were orderly and focused on a particular purpose, the Tribune accepted their conduct. But when they were disorderly and out of control, it condemned them. Because the crowd at the execution behaved like a disorderly lynch mob, it threatened to undermine justice.
52

      The Tribune's discussion of the final part of the Davis case served as a reminder that, while popular justice could be a necessary check on law, popular movements could also threaten justice. That insight was no accident but the result of one final, popular, effort. For weeks, ministers and members of Chicago area black churches had gone with Davis's mother to see him in jail. And they had systematically crafted a new image for Davis during that period, calling on the old tradition of execution sermons. Yet even as they relied on that tradition, they modified it. Typically, the state had used the remorse of the condemned convict as an object lesson for others. But in the Davis case, his supporters challenged certain popular assumptions. In particular, they used the execution to fit Davis (and other blacks as well) back into the Chicago-wide community from which Davis had been excluded during the course of his trial. They also used it to undermine the idea of popular justice by calling into question the behavior of the mob. ⁸⁰ The execution scene was, in that sense, a successful use of the public sphere to criticize the idea of popular justice. Paradoxically, by using the moment at the gallows as a way to reinstate Davis, his supporters acted out of the very integrationist sentiment that had silenced African Americans in the earlier stages of the case. Thus, Davis's hanging offered two ironies. Not only did it provide a moment for popular excess and critical reflection on the risks of excess inherent in popular justice, it also demonstrated that the potential for self reflection only went so far. Nothing in the descriptions of the final scene indicates that his supporters recognized the significance of the African-American community's earlier failure to act or speak out in Davis's defense.
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      Some might argue, of course, that the last point is unfair. Many have criticized the idea of the public sphere on the grounds that, even at its most expansive, it was not open to all, and the marginalization of African Americans during most of the Davis case adds ammunition to that charge. ⁸¹ But it is important to understand that, despite constraints, the general emphasis on public action and popular debate in late nineteenth-century Chicago encouraged the marginalized to attempt to participate in public conversations. It is especially significant that, even when they seemed most separate, those marginalized groups did not engage in the interest group activism of later periods. Although a few organizations advanced ideas based on a sense of their distinctiveness, most based their actions on the belief that they were part of the greater Chicago community and were entitled to a role in shaping its course. That was the essence of the integrationist ideals expressed by the Western Appeal, the protests and demands made by the Trade and Labor Assembly, and even the denunciations of the coroner's jury. Thus, the problem was not simply, or even chiefly, that some were excluded from full participation in the public sphere. Rather, it was the extent to which certain groups, especially the African-American community, concluded that participation in some debates might undermine their future ability to function in the larger community and silenced themselves accordingly. ⁸² Thus, the failure of African Americans to support Davis was a malignant aspect of public opinion.
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Conclusion

In the end, however, the question is whether this has any significance. Zephyr Davis, after all, probably killed Maggie Gaughan, and he did so in a particularly brutal way. A verdict against him, under those circumstances, was no miscarriage of justice, even if it owed more to popular will (and prejudice) than to the commands of the state of Illinois. Since popular pressure did not, apparently, corrupt the result of the trial, what did it matter?
55

      There are several ways to answer that challenge. The first, which has been offered before, is that the significance of popular justice lies in its role rather than its effect. The Davis case demonstrated that popular justice did impinge on law, as well as why and how it did so. If nothing else, it suggests that the "breakdown of law" in the Haymarket trial was not an aberration, precisely because law in late nineteenth-century Chicago did not function as an institution apart from popular influence. ⁸³ The Davis case is significant because it confirms that law and popular justice were inextricably intertwined.
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      The second response complicates the first. Taken separately, as their contemporaries saw them, both the Haymarket and Davis cases offered an opportunity to condemn the excesses of either popular justice or formal law. Those who deplored the outcome in the Haymarket case demanded a greater attention to the rule of law. Those who fretted over the conduct of the Davis case insisted on larger doses of popular justice. Read together, as historians can and should, the result appears to be a muddle, rather than a prescription. If Haymarket demonstrated that too little law led to injustice, the Davis case apparently produced justice because there was too little law. Considered together the cases fail to offer a coherent explanation of the relationship between law and popular justice. But the Davis case offers us a way around this problem and reveals a pattern that clarifies the relationship between law and popular justice.
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      The comments on the trial's outcome, and the subsequent criticisms of the execution, show the inadequacy of formulations that set law and popular justice at odds with each other. Praise of the trial emphasized that justice was done in the absence of law; criticism of the crowd at the execution made it equally clear that justice was not an inevitable hallmark of public opinion. These two observations suggest that justice is not an essential part of either formal law or extralegal conduct. Rather, it exists independent of both and must be the measure against which each is judged. It is also the marker against which we judge trials, either as historians or contemporary observers.
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      If the outcome of the Haymarket trial strikes us as unfair, while the Davis verdict may not, this conclusion reflects our sense of justice. The Davis case serves as a reminder that the concepts of law and popular justice cannot be easily separated. At the same time, it demonstrates that, because justice is separate from both, neither can guarantee that justice will occur, and neither can independently define what is just. In the end, perhaps, Joseph Gary was more perceptive than we credit him as being. Law, and popular justice, may only be just when they are consistent with the common sense of the people of the community.
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Elizabeth Dale is an assistant professor of history at Clemson University. Earlier versions of this article were given at the Social Science History meeting in October 1996, the Law and Society Association meeting in May 1997, and the American Society for Legal History conference in October 1997. She appreciates the comments offered at those meetings, as well as the suggestions made by Chris Tomlins and the anonymous readers for the Law and History Review.

Notes

      1. Chicago Tribune, 27 February 1888, 1; Chicago Times, 28 February 1888, 3.

      2. Chicago Tribune, 29 February 1888, 1; Chicago Times, 28 February 1888, 3; People v. Zephyr Davis, indictment number 21222a, term number 1158, Circuit Court of Cook County, Illinois, filed March 1, 1888. Cook County Court Records, Box 3a-32-b-48. See also Jury Verdict dated April 2, 1888, Cook County Court Records, Box 3a-32-b-48 and Chicago Tribune, 1 March 1888, 7.

      3. Jeffrey S. Adler, "'My mother-in-law is to Blame, But I'll walk on her Neck yet': Homicide in Late Nineteenth-Century Chicago," Journal of Social History 31 (Winter 1997): 25

      4. Joseph E. Gary, "The Chicago Anarchists of 1886: The Crime, the Trial, and the Punishment," The Century Magazine 45 (April 1893): 803.

      5. Ibid., 809.

      6. Ibid.

      7. Ibid., 836.

      8. "'The law,' he wrote, 'is common sense.'" Ibid., 802, 836.

      9. Carl Smith, Urban Disorder and the Shape of Disbelief: The Great Chicago Fire, the Haymarket Bomb, and the Model Town of Pullman (Chicago: University of Chicago Press, 1995); Paul Avrich, The Haymarket Tragedy (Princeton: Princeton University Press, 1984); Samuel P. McConnell, "The Chicago Bomb Case: Personal Recollections of an American Tragedy," Harpers Magazine 166 (May 1934): 730, 735; Edgar Lee Masters, The Tale of Chicago (New York: G. P. Putnam's Sons, 1933), 216.

      10. It also offers an alternative to those histories that argue that over the course of the nineteenth century, criminal law became increasingly institutionalized and popular influence on criminal